Healthcare Update

Recently, INS issued regulations affecting health care workers. While it appears that INS’ goal was to clear up the confusion surrounding healthcare workers it may have unintentionally added to the confusion.

In a move to add clarity to the murky waters of healthcare workers, INS issued a memorandum that confirmed that most RN positions do not qualify for H-1B status because generally, a Bachelor’s Degree is not required to perform the duties of the job. In the same memorandum, INS noted that certain nursing positions requiring advance knowledge may qualify for an H-1B. Positions specifically mentioned are: advance practice nurses, clinical nurse specialists, nurse practitioners, certified register nurse anesthetists and certified nurse midwives. Nurses in administrative positions, such as upper level managers in hospital administrative positions may also qualify for H-1B status because these positions often require a Bachelor’s Degree or a graduate degree.

By issuing regulations on December 17, 2002, the INS again attempted to clear up the confusion surrounding the nonimmigrant healthcare Visa Screen certificate. Unfortunately, the healthcare questions became even cloudier. The visa screen has been waived for all nonimmigrant healthcare petitions to date. There has been a perceived conflict with the NAFTA regulations. However, the visa screen is required for permanent residence applications. Although the December 17, 2002 regulations recognize the conflict, they do not clear up the confusion and apparent contradiction with the NAFTA provisions. To that end, for now, the waiver for the visa screen is still in place for nonimmigrant petitions for health care workers.

It is important to note that the visa screen waiver has been discretionary and could be required at anytime for all nonimmigrant healthcare workers. Furthermore, even without a formal end to the waiver of the visa screen, each consulate has the discretion on this issue and may refuse to issue a visa without it.

The time it takes to obtain the certifications can sometimes be prohibitive for the nurses and employers. If the policy changes and the certification is required, which will include verification that the visa applicant is proficient in oral and written English, has obtained an education that is comparable to that of an accredited U.S. institution and has received the necessary state licenses, then something must be done to improve the efficiency of the private credentialing agencies to improve processing times and avoid unnecessary delays.

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In other healthcare news, Health and Human Services (HHS) amended its regulations regarding processing of waivers for the two year foreign residence requirement for Physicians. HHS will act as an interested governmental agency requesting a waiver if the physicians agree to practice in a medically underserved area in the country for three years.

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